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Banks v. Smith

United States District Court, W.D. Louisiana, Lake Charles Division

January 23, 2019

MARLON J. BANKS D.O.C. # 554248
v.
SETH SMITH

          SUMMERHAYS JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Marlon J. Banks, who is proceeding pro se in this matter. Banks is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at Elayn Hunt Correctional Center in St. Gabriel, Louisiana. Seth Smith, former warden of that facility and respondent in this matter, opposes the petition. Doc. 26. Banks has not filed a reply, and his time for doing so has elapsed.

         This petition is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         Banks was charged by bill of information with two counts of armed robbery, one of which was later dismissed, and one count of the enhancement provision for armed robbery with a firearm, in violation of Louisiana Revised Statute §§ 14:64 and 14:64.3. Doc. 26, att. 4, pp. 18, 34. Following a jury trial, he was convicted as charged. Id. at 144. On September 30, 2009, he was sentenced to a ten-year term of imprisonment for the armed robbery charge with a five-year enhancement under the firearm provision, to run consecutively to the ten-year term. Doc. 26, att. 6, p. 86. The court imposed both terms without benefit of probation, parole, or suspension of sentence. Id.

         B. Direct Appeal

         The petitioner then appealed his conviction to the Louisiana Third Circuit Court of Appeal, raising the following assignments of error: (1) the evidence was insufficient to support the conviction, (2) the trial court erroneously allowed a police officer to render an expert opinion, (3) cumulative error entitles him to reversal of his conviction. State v. Banks, 2012 WL 5416967 (La. Ct. App. 3d Cir. 2012). The appellate court also noted an error patent relating to the trial court's failure to inform Banks of the prescriptive period for filing for post-conviction relief. Id. at *6. It reviewed assignments of error 1 and 3 on the merits but limited its review of the officer's testimony under Code of Criminal Procedure article 841, Louisiana's contemporaneous objection rule. Id. at *6-*12. The appellate court then denied relief except to remand the case and instruct the trial court to provide Banks with written notice of his time for seeking post-conviction relief. Id. at *6-*12. Banks sought review in the Louisiana Supreme Court, which denied same on May 17, 2013. State ex rel. Banks v. State, 117 So.3d 1259 (La. 2013). He did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, p. 2.

         C. State Post-Conviction Relief

         Banks filed a pro se petition for writ of habeas corpus in this court on August 14, 2014, along with a motion to stay the case and hold it in abeyance pending his exhaustion of state court remedies. Docs. 1, 2. The court granted the motion to stay on March 11, 2015, and ordered Banks to inform the court once his state court proceedings had concluded. Doc. 7. On May 11, 2015, Banks filed a pro se application for post-conviction relief in the trial court, raising the following claims: (1) denial of due process and a fair trial through the allowance of an expert opinion from a police officer, and (2) two counts of ineffective assistance of counsel, with no supporting allegations provided. Doc. 26, att. 8, pp. 61-62. He also filed a motion to supplement the application, requesting an additional 30 days to provide a memorandum in support of his motion. Id. at 64-65. The trial court gave Banks 45 days to submit his memorandum, but it appears from the record that the memorandum was never filed. Id. at 67. The trial court then denied both the motion to supplement and the application for post-conviction relief by order filed September 14, 2015. Id. at 68-69.

         After multiple unanswered requests for the trial court to act on his Notice of Intent to seek supervisory writs, Banks filed an application for writs in the Third Circuit on May 31, 2016. Id. at 92. The trial court complied and granted Banks until August 18, 2016, to file a writ relating to the denial of his application for post-conviction relief. Id. at 93. Banks complied and the Third Circuit denied writs on December 7, 2016, expressly affirming the trial court's ruling that (1) the due process claim was repetitive because it had been litigated in Banks's appeal and (2) Banks failed to provide any specific arguments or facts and applicable law in support of his ineffective assistance of counsel claims, meaning that he failed to carry his burden under Louisiana Code of Criminal Procedure Article 930.2. Id. at 94. The Louisiana Supreme Court denied Banks's application for supervisory review on April 20, 2018. Id. at 98-99.

         D. Federal Habeas Petition

         As noted above, Banks filed his petition for writ of habeas corpus in this court on August 14, 2014. He raised claims of (1) insufficient evidence and (2) cumulative error resulting in a denial of due process. Doc. 1. Under the second claim, he only argues that the trial court erroneously allowed a police officer to render an expert opinion and so this claim is actually a request for review of the second claim of Banks's direct appeal. Id. at 6.

         The matter was stayed pending Banks's exhaustion of his application for post-conviction relief, and the court lifted the stay on May 1, 2018, after learning of the Louisiana Supreme Court's 2018 denial of review. Docs. 7, 14. The court granted Banks an additional 45 days to submit any amendments to his habeas petition. Doc. 14. After that time had passed, the court ordered service on the respondent. Doc. 17. The respondent has now filed a response in opposition, and Banks has submitted no reply within the time accorded to do so. Doc. 26. Accordingly, the petition is now ripe for review.

         II.

         Legal Standards

         A. ...


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